Supreme Court, U.S. FILED
APR 2 8 2019
18- OFFICE OF THE CLERK No.
In The
Supreme Couvt o 1 tlj e Uniteb States
Nasser Ghelichkhani,
Petitioner v.
UNITED STATES OF AMERICA:>■
Respondent.
On Writ of Certiorari to the
U.S. Court of App e a 1 s f o r t he Eleventh Circuit
PETITION FOR A WRIT OF CERTIORARI
N. Ghelichkhani*,
310 N. Olive Ave.
West Palm Beach, FI 33401
*Counsel of record. Pro, Se. [email protected] Date* QUESTION PRESENTED
As cited in Class v. United States, 583 U.S.__ (2018), In Blacklegged v. Perry, 417
U.S. 21 (1974), and Menna v. New York, 423 U.S. 61 (1975), this Court held that where a defendant pleads guilty, but then asserts a right that would have prevented the government from prosecuting him at all— such as the right not to be vindictively prosecuted or to be put into double jeopardy—the assertion of that right
is not inherently waived or foreclosed by the guilty plea. In conclusion of Class, this
court held that- “Conviction on such plea is constitutionally invalid”.
Similar to class, convictions obtained on a charge that does not state an offense
have always been dismissed on appeal, or such charges have been dismissed after
their filling or during prosecution. See; Smiley v. United States, 181 F.2d 505 (9th
Cir. 1950) where court stated charging with statement of born in New York does not
amount to claim to US citizenship. This could be resolved in a motion filed pre trial.
See Fed.R.Crim.P. 12(b)(2)
Rights enumerated in the U.S. Constitution are recognized as "fundamental" by the
U.S. Supreme Court.
In United States v. Morgan, 346 U.S. 502 (1954), this court held the writ of Coram
nobis may be issued to correct a constitutional violation, id. at 512-513. 11
Ever since Morgan, Circuit courts are in conflict mainly with 11th circuit, on what standard to use in detecting and correcting a manifest injustice, in last remedy
available “Writ of Coram Nobis”. In contrast to several decisions of this court.
See! U.S v. Peter, 310 F.3d 709, 711, “A district court's denial ofcoram nobis relief
is reviewed for abuse of discretion, keeping in wind that “an error ofla w is an abuse
of discretion per se”
See, U. S. v. CHAN, .16-55469 (9th Circuit, 2018), “ We review de novoa district
court's denial of a petition for a writ of error coram nobis’’.
And See, Koon, 518 U.S. at 100("The abuse-of-discretion standard includes review
to determine that the discretion was not guided by erroneous legal conclusions”).
And See, Anderson, 470 U.S. at 573-74 The reviewing court may not substitute its view for that of the district court.
Question represented;
l-Whether a conviction, with tremendous adverse consequences, is
constitutionally valid, when it is obtained through a plea (that does not waive
appealing the conviction), on a charge that does not state an offense? m• ‘ *
2-Whether after loss of immigration status as result of conviction on above guilty plea, being informed by immigration in 2017 that immigration supervised release will stop* re arrest and further prosecution for purpose of deportation will occur, based on policy change of a new president, previously unknown, is sound reason to trigger filling of last resort relief, “writ of Coram Nobis”, then and not earlier?
3'Whether prosecuting on and criminalizing, a charge that does not state an offense, plus additional constitutional rights and due process violations, qualify as fundamental errors for purpose of relief on writ of Coram nobis? iv
TABLE OF CONTENTS
TABLE OF CONTENTS iv
QUESTION PRESENTED 1
TABLE OF AUTHORITIES viii
OPINIONS BELOW 1
JURISDICTION 1
CONSTITUTIONAL AND STATUTORY I
PROVISIONS INVOLVED 1
INTRODUCTION 2
STATEMENT OF THE CASE
A. Background Facts. 5
-Late Indictment. 6
-Charged indictment does not equate to the offence in
Charged Statute 28 USC 911 6
Search and seizure before Warrant 6
Ineffective Counsel 7
Vindictive Prosecution 7
B. Petitioner Attacks The Constitutionality of proceedings 7
Direct appellate counsel, only appeals the sentence
Which had a waiver 7
C. Plea of Guilty, 8 V
D- Withdrawal of plea is denied, prosecutor misleads the court,
That conviction will not affect immigration Status, 9
E-Sentencing
a) Prosecutor tells court to discard all tile times served, and Impose
Fresh Maximum, Sentence. She reasons! by probation court can get
More custody time, while without it has to release petitioner. 9
F* Petitioner is sentenced under 18 USC 3561, max. 5 years Probation,
which was expressly precluded in charged statue 28 USC 911. 9
G-First probation revocation 9
H- Second probation revocation 9
1-2255 motion 10
JTn denial of habeas corpus judge does not recognise
its own imposed custody 10
K- Writ of certiorari, denied 10
L- Rehearing on certiorari, returned untimely, in contrast to
Prison mail box Rule. 10
N-Request for transcripts denied. 10
M-Pending adjustment of immigration status is denied due to
The Conviction on plea, in 2012. 11
O-Ice supervision, 2017 11
P- Writ of Coram nobis filed, was denied. 11 vi
Q-Appeal Brief Government Concedes charge does not state an offense. 11
R-11th circuit denies appeal, applying abuse of discretion standard 11
S* Rehearing Denied 11
Argument 12
REASONS FOR GRANTING THE PETITION. 18-21
I-THE CIRCUIT COURTS ARE DEVIDED ON WHAT STANDARD OF
REVIEW SHOULD BE USED IN REVIEWING DECISION OF LOWER COURT
IN DENIAL OF WRIT OF CORAM NOBIS.
* 11TH CIRCUIT’S DECISION IS AGAINST OTHER CIRCUITS ON WHAT IS A
FUNDEMENTAL ERROR THAT CAN MAKE A PROCEEDING IRREGULAR OR
INVALID, OR WHAT IS A SOUND REASON TO FILE FOR RELIEF UNDER
WRIT OF CORAM NOBIS.
- lira CIRCUIT‘S DECISION, IS AGAINST OTHER CIRCUITS, TO GIVE
DISCRETION, AND ASSUME JURISDICTION TO LOWER DISTRICT COURT
TO DENY THE LAST RESORT REMEDY AVTLABLE “WRIT OF CORAM NOBIS”,
WITHOUT CHECKING TO SEE IF CORRECT LAW WAS APPLIED,
- 11th CIRCUIT’S DECISION IS AGAINST OTHER CIRCUITS, WHEN IT
REFUSES TO REVIEW QUESTIONS OF LAW SUCH AS JURISDICTION, EVEN
ON A CHARGE DOES NOT STATE AN OFFENSE. vn
-11TH CIRCUIT HAS DECIDED AN ISSUE , AGAINST ADVICE OF THIS COURT
ON A CHARGE THAT DOES NOT STATE AN OFFENSE, EVEN AFTER
GOVERNMENT CONFIRMED IT IN ITS BRIEF , THEREFOR CONVICTION
SHOULD NOT STAND.
-lira CIRCUIT HAS MADE A DECISION THAT IS AGAINST OPINION OF THIS
COURT, IN REFUSING TO GIVE A CHANCE TO SHOW FEDERAL
CONVICTION WAS WRONGLY OBTAINED
II THIS CASE IS WORTHY OF THIS COURTS REVIEW
A-This issue is recurring 23
B-This case is an excellent vehicle, to 24
III- The 11th circuit court of appeal decision is wrong 24
CONCLUSION 25
Certificate of compliance and service. 26 i. » vm
TABLE OF AUTHORITIES
CASES
Anderson v. city , 470 U.S. 564 11
Baldayaque, 338 F.3d 145 at 151 (2nd, 2003). 16
Blacklegged v. Perry, 417 U.S. 21 (1974), i
Brady v. United States, 397 U.S. 742, 748 (1970). 23
Castillo v. Allegro 603 F. App’x. 913, 915 (l1th Cir. 2015) 14
Reno v. Catholic Social Servs. 509 U.S. 43 (1993). 5;
Class v. United States, 583 U.S. i,2,5,22,24
Cleveland v. U.S., 531 U.S 12 2,13, 18
Halberd v, Michigan 545 US 605, 621-22 (2005) 4, 24
In re Winship, 397 U.S. 358 3
Kovacs v. U.S., 744 F.3d 44 (2d Cir. Mar. 3, 2014) 15
Koon v. US, 518 U.S. 81 int, ii, 16
Lafler v. Cooper, 132 S. Ct. 1376 (2012), 15
Lujan -Armendariz v. INS, 222 F.3d 728 (9th Cir. 2000). 17
Matter of Roldan, 22 1. & N. Dec. 486 (BIA 1999) en banc, 17 IX
McDonnell v. U.S. 136 S. Ct.2355 at 2368 15
Menna v. New York, 423 U.S. 61 (1975) i
Missouri v. Frye, 132 S.Ct. 1399, 1407 (2012). 2
Padilla v. Kentucky, 559 U.S. 356 (2010), 15
Smiley v. United States, 181 F.2d 505 1950) 1,3,5,12,15,24
U. S. v. CHAN, .16-55469 (9th Circuit, 2018) ii
U.S. v. Edrinaton. 726 F.2d at 1031 12
U.S. V. Granderson 511 U.S. 39. 18
United States v. Harper. 901 F. 2d 471, 472 (5th Cir. 1990) 12
U.S. v. KWAN No. 03-503lo.(9th Cir. 2005). 16, 22
U.S. v. Legros, 529 F.3d 470, 473 (2d Cir. 2008) 4
U. S. v. Mayer, 235 U.S. 55 21,24
U.S. v. Meacham. 626 F.2d 503 (5th Cir. 1980 12,
U.S. V. Morgan 346 U.S. 502 (1954) intro, i,5, 11,14,15,18, 21,22,24
U.S v. Peter, 310 F.3d 709 n
U. S. v. Rhines, 640 F.3d 69, 71 (3d Cir. 2011) 16
United States v. Stevens, 559 U.S. 460, 480 (2010). 23 .X
Tvuiillo 310 p.3rd 594 (2013) 16
WaJeyv. Johnston, 316_U.S._101 15
Statutes
18 USC 911 1, 6,13,18
28 U.S.C. § 1291 16
18 USC 3561(a)(2). 17
18 USC 2255 12
§ 212(a)(2) (A)(i)(I) of INA 17
OTHER AUTHORITIES
Lindsey Devers, B.O.J. Plea and charge bargaining. 23
Fed. R. Crim P.ll 23
Fed. R. Crim P. 11(a)(2). 23
Fed.R.Crim.P. 12(b)(2)) ii,12
Fed.R.Crim.P 12(b)(6) 14
Constitutional amendments
4th, 5th, 6th, 8th, and 14th 24 1
PETITION FOR A WRIT OF CERTIORARI
Petitioner Nasser Ghelichkhani respectfully petitions this Court for a writ of certiorari to review the judgment of the United States
Court of Appeals 11th circuit, for the Southern District of Florida.
OPINIONS BELOW
The 11th circuit’s Opinion. Dated Oct.30th, 2018. (Appendix A)
The district court for southern district of Florida opinion in denial of writ of coram nobis on Sep 2017 ( Appendix B, denial on motion to dismiss
(based on indictment not charging an offense), and denial of withdrawal of plea dated 12/03/2009, denial of habeas corpus dated Aug/16/2009, writ of certiorari to
Supreme Court denied on March 29/2010, Rehearing on Certiorari submitted on
April 23rd (returned by clerk on may 12), all are unpublished.
JURISDICTION
This Court has jurisdiction under 28 U.S.C. § 1254(1). The 11th circuit entered its opinion on Oct. 30th, 2018 and rehearing was denied on 01/30/2019
CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED
This case involves U.S. Const.4th, 5th, 6th, 8th, 14th, amend; And statutory provisions 28 USC 911, 18 USC 3561(a)(2), 28 U.S.C. § 1291, § 212(a)(2)(A)(i)(I) of
INA, Const. Amend. 4th, 5th, 6th, 8th, and 14th 2
INTRODUCTION
The circuit courts are divided on what standard of review should be used in deciding denial of a last resort remedy writ of Coram nobis, many use de novo standard and
11th circuit uses abuse of discretion standard.
Circuits are also divided on what is considered a sound reason to file for relief under writ of Coram nobis, or what is considered a fundamental error that makes proceedings irregular or invalid.
In Class v. United States, 583 U.S. This court held that- a plea of guilty does not inherently waive rights to challenge the constitutionality of the conviction.
Such claims would succeed even if the government proffered overwhelming evidence that the defendants had violated the relevant statutes. Accordingly, these claims
are not resolved by pleading guilty, and the defendant is therefore not inherently foreclosed from raising them on appeal.
Like in class, resolving the divide on this issue would make guilty plea proceedings
more predictable, thereby benefitting defendants, prosecutors, and courts alike.
See Missouri v. Frye, 132 S.Ct. 1399, 1407 (2012).
And there would be less waste of time and money on unnecessary prosecutions of
charged offenses that are not a crime.
On the other hand, If this court has to go that far, could resolve the divide,
between circuits, on weather important issues in denial of the last remedy Coram 3 nobis should be reviewed de novo or be left at the discretion of lower court. Lastly will resolve, what is considered to qualify as a fundamental error.
And what can qualify as a sound reason to file under writ of Coram nobis to avoid consequences of the conviction.
The split in the circuit courts means that the scope of review after a Guilty plea varies significantly depending solely on where a defendant is indicted and pleads guilty.
Even there is a split in the same southern district of Florida, depending who is the judge or government prosecutor. For example. Several Identical charges, at the very
same time in the very same Southern district, such as born in “West Palm Beach
Florida “were dropped for not equating to claim to US Citizenship, under different judges and prosecutors. See, Smielv v.U.S. 181 F2nd 505. And .Cleveland v. U.S.,
531 U.S
When circuit court gives authority and discretion to lower court, outcome will also
depend which judge decided the case. Therefore there is a need for proper review to
avoid above Errors.
De novo review determines whether trial court had jurisdiction or applied the right
law in making decisions, while abuse of discretion assumes jurisdiction and only
looks to rationality of decision in favor of district court with little weight to filling
party. (Citing In re Winship, 397 U.S. 358. also see; foot notes 101*103)).
Conviction on a Claim to US citizenship is a kiss of death in immigration laws.
Applicants for adjustment of status or for an immigrant visa who have been 4 convicted of some serious types of Grimes may apply for a waiver of inadmissibility. while those who have been convicted on false claims to U.S. citizenship, are ineligible for a waiver of inadmissibility. The enactment of IIRIRA made foreign nationals who made false claims to US citizenship permanently inadmissible.
U.S. Supreme court held that jurisdiction and constitutional issues can be a reason to file for relief under writ of coram nobis Morgan. 346 U.S, at 509, 512
Also See Halberd v, Michigan 545 US 605, 621-22 (2005) (one who pleads guilty
May still rise on appeal constitutional defects that are irrelevant to his factual guilt, double jeopardy claims requiring no further factual record, and JURIDTICTIONAL
DEFECTS. (Emphasis added)
A district court necessarily "abuses its discretion" ifit makes an error oflaw. See,
U.S. r. Leeros. 529 F.3d 470. 473 (2dCir. 2008) (“The abuse-of-discretion standard incorporates de novo review of questions oflaw (includins interpretation of the
■Guidelines) and dear-error review of questions offact.”).
Petitioner was Sentenced in accordance to plea, on a charge that did not state an
offense, and sentence was in violation of the statute charged, without consideration
of constitutionality of that plea. .Both district court and circuit court refused to
consider the attack on constitutionality of plea, when indictment did not charge an
offense, in contrast to Class, where permits constitutional challenges to validity of
statute and or when statute does not equate to the charged indictment.
The circuit courts finding Was in contrast to other circuits suck as 9th circuit. .5
See, Smielv v.U.S. 181 F2nd 505
The court should grant the petition, resolve the circuit split, and reverse the 11th circuit’s adoption of lower court’s improperly interpretation of Smiley, Morgan, and
Glass
STATEMENT OF THE CASE
Background Facts! Petitioner Is an Engineer, Originally entered New York, on an
F'l Visa in December of 1976. In 80s his amnesty application was denied by INS
(immigration and naturalization), for short trip abroad, but years later was allowed to file again, as C.S.S., LULAC class member. See, Reno v. Catholic Social Servs.
509 U.S. 43
In 2001 he was arrested by Ice for over stay of F-1 Visa. While he was a C.S.S,
LULAC, class member of late amnesty under President Reagan. Instead of no arrest, custody or deportation, ICE (Immigration and Customs Enforcement), did all of that. Finally released in 2004 on supervised release, without any IDs such as a valid driver’s license, which was valid till 2007.
In 2004 a copy of driver’s license was applied for (due to digital picture no other
documents were used), during a casual conversation defendant was asked which
state he was from, which was assumed to have meant original state he first was in
U.S, which was New York. 6
In 2007 defendant was arrested by Ice, And charged with stating he was born in
New York, while visiting Drivers licence branch of department of motor vehicle of state of Florida in 2004, as stated above.
Arrest Dated was July 5th. 2007
During interrogation a covered form, to be signed presented by ICE agent as release form, later turned up as Miranda rights waiver. And questioning did not stop when an attorney was asked for. See affidavit. (Appendix K)
Late Indictment,
Long after 30 days past the arrest, ICE found a prosecutor that successfully created an indictment dated 08/16/2007. without a foreperson signature .(appendix F).
Indictment did not equate to the offense in statute 28 USC 911>
Defendant was charged with statement of “born in New York”, Which is not same as
28 USC 911. (“Claim to US Citizenship”).
Search and seizure
About 2 weeks later, Through an informer Ice located defendants storage unit, used an ICE subpoena dated 07/16/2017 (Appendix I) and did an extensive search for
about 3 hours and used it to get a warrant dated iulv 17/2017 (Appendix J)
Warrant was altered by hand writing and it was made to be limitless, then ICE took
several days of search to find any dirt they can charge with since they had nothing
so far, 7
Assistance of counsel
First counsel advised if defendant did not take a plea, he will be sent for evaluation and did so on 9/28/2007 over objection., bis replacement requested on 10/05/2007 was refused until a competency test was administered on 10/09/2007 defendant was committed for four months (with prosecutor’s intend of long term civil commitment, if result could be tampered with). New counsel was provided after evaluation, on
1/11/08.
The result came hack, O.K. (Not satisfied, later prosecutor asked court to send
for more evaluations, using sentence of probation).
On 04/09/2008 defense counsel* filed for continuance and caused loss of speedy trial asked of him.
*Prosecutor later clarified she had been acting vindictively by conferencing All
asking them not to defend (during first Defense attorneys in local Ice location, revocation of probation hearing dated 8/12/2009).
Constitutionality of charge and plea, All motions were filed pro se, among them was motion tn dismiss the charpp.tl indictment for not statins an o£fBZise, no hearing was
conducted earlier on that motion, and was denied later, prior to sentencing, its
denial was preserved for appeal, the introductory appeal was not allowed and direct
appellate counsel only appealed the sentence, which had a waiver.
Health detoriating, on 05/05/2008 motion for proper medical care was filed,
with no effect.(at some point, Triglycerides level of 650, and blood pressure of
200 over about 90 was said to be normal). 8
Plea was staged by surprise dated 08/07/2008
Last attorney came to see defendant the night before a plea was to be signed,
did. not mention of that court and instead promised to file defense motions.
Early hours of morning defendant was waken up with approximately 2 hours
of sleep, and was made to wait in different holding cells to go to court.
At 9 am defense counsel said court was waiting for defendant to sign a plea
(never seen or discussed), it was shocking, but he assmed that the plea would
only waive annealing the sentence and sentence was going to be time served.
The physical discomfort and psychological and emotional pressure being held
with no bond with much isolation imposed randomly a Released Time Served
with no loss on appealing the conviction sounded good.
Plea was asked to be signed before court went over it, during plea several times
defendant only agreed to plea as charged in indictment,born in new York”, and
during time court was going over it, defense counsel made interruptions, and did
not allow every question judge asked to be heard, and double questioning created a
response for second question to also cover the first question (Appendix Y ). // Appellate counsel failed to prepare proper appeal and his replacement was denied on 05/01/2009. Reason for not immediately realising defendant was, if psi (pre sentence _ investigation) comes back confirming the sentencing guide fine, of zero to 6 months. 9 Then defendant will be released But After another long wait of two months PSI confirmed 0~6 month time. Still Court Would not Release. Withdrawal of plea* Before sentencing was asked, to allow him to withdraw the plea, because he was worried that the conviction mav affect his adjustment of immigration status. But prosecutor advised court that the conviction will not affect immigration. Defendant was sentenced, onlO/08/2008, Prosecutor told judge if he uses custody time, he will have to release defendant but instead he can give him maximum sentence of 5 years Using 18 USC 3561, instead of 28 USC 911, so he can stay in custody longer. Judge Sentenced to 5 years Probation and $100 Fine onlO/08/2008, with No Credit to Time Served. 1st probation was violated because during an evaluation page related to using illegal drugs was left unanswered by evaluator “Martiza yzaguirre” , she reasoned she had done so since the response to all questions in that page was no. Judgement on first revocation of probation. Dated 8/14/09 • Probation 60 months. $100 Fine.. Imprisonment of 6 months ulus 446 days., and 12 month supervised release. Signed bv Judge mlddlebrooks. a sentence 626 davs. not including several ICE custodies during proceeding. (Bv this all times served were discarded). -2nd probation was violated because prior to evaluation, a copy was asked to eliminate what happened in first revocation. Qn 12/03/2009 Sentence of Additional 9 months was Imposed. 10 With two probation violations, there were 3 convictions now on record. •A 2255 was denied because a direct appeal was pending, which covered none of the issues brought up in 2255, and 11th circuit denied it since a plea of guilty was involved even though the plea did not waive appealing the conviction, but problem was, the appellate attorney only appealed the sentence that was waived by the plea. A habeas corpus was denied because the judge in district court refused to accept serving time, under sentence of probation violation, qualify as being in custody for purpose of writ of habeas corpus. Dated 8/19/2009 (Apndx. C) Request for transcripts to file properly were denied, on 9/08/2009. Appeal was denied by appellate court for inability to pay as an indigent pro se filer and certiorari was denied on March 29, 2010. A Rehearing on Writ of Certiorari was submitted on April23, 2010. Was return by Clerk of Supreme Court dated May 12th, 2010 Overlooking Prison Mailbox Rule (Appendix El, E2, E3). After second revocation of probation on 12/03/2009, defendant was warned, by filling a successive habeas corpus or 2255, court may provide a new trial, do same activities over and take many additional years, without a chance to even be heard on appeal. -To avoid those scary consequences and the inability to even survive the physical and psychological damage, not mentioning financial damage, any other filling which after release were no longer available, were not filed. 11 In 2012, tile pending adjustment of status under late amnesty was denied due to not just one conviction but 3, since revocation of probations were each counted as additional Convictions. (Appendix M 1, 2, 3) -After election of trump which was not predictable, in 2017 on the ICE supervision report time petitioner was informed of immigration policy change. He was asked to attempt to get a passport, unable to get earlier, or get taken in custody. On next visit, the inability to do so was not accepted and was threatened by an ICE officer that was involved in near fatal attack of petitioner in 2003 custody of Ice that same facility will be chosen in this arrest for own protection as Was offered in 2003. A writ of coram nobis was filed which was denied On Oct. 30th 2017. Anneal of that denial, was denied by 3 panel of 11th circuit on Oct 2018, not looking at any issues brought by petitioner and accepted findings of district court as fact. Government response on appeal, filed electronically on July 23ld, Was due on July 9th 2018 but was allowed, over objection. There Government argued that, relief should have been asked earlier* through 2255 motion, and a motion to dismiss the charge as Government conceded the charge does not state an offense. July 23/2018. ( *These motions were filed) The rehearing was denied on Jan 30th 2019, During the proceedings ICE has tried to arrest and take petitioner into custody even with a pending appeal and has asked the mail to be interrupted at address, and if petitioner is seen trying to pick up mail .ICE to be contacted and arrest to be 12 made to stop further appeal. And any mail received to be returned which is a federal offense. Argument The 11th circuit in its denial of relief on writ of Coram nobis, used abuse of discretion standard, and concluded the writ was filed untimely and- 1- Appellant failed to provide any sound reasons as to why he waited over seven years after he was released from federal custody to file his petition, (in 2017). 2* Failed to show there was a fundamental error that made his criminal proceedings irregular or invalid. 3" Other reliefs were or are available. All possible reliefs) were filed, however Since District court had no jurisdiction over charge, none could have been or are available. United States v. Harper, 901 F.2d 471, 472 (5th Cir. 1990) (entertaining post-conviction challenge under 18TI.S.C. $ 2255 based on indictment’s failure to charge offense because such error “divests the sentencing court of jurisdiction”) .Citing U.S. v. Edringtoih 726 F.2d at 103l(''entrv of a guilty nlea does not act as a waiver of jurisdictional defects” )" also U.S.v. Meacham, 626 F,2d 503, 510 (5th Cir. 1980). See Fed.R.Crim.P. 12(h)(2)), When charged indictment of born in New York is not a crime. SEE SMILEY V. U.S. 181 F.2d 505 (9th Cir. 1950), {STATEMENT OF i BORN IN NEW YORK DOES NOT AMOUNT TO CLAIM TO US CITIZENSHIP). Because the charge of born in New York does not amount to 13 offence of 28 USC 911, conviction should have been vacated See : Cleveland v. U.S., 531 U.S. 12- Refusing withdrawal of plea, Refusing relief on pretrial motion to dismiss the charge, or post conviction motions such as habeas corpus, loss of direct appeal due to unwillingness of counsel to file direct appeal properly, denial of last resort remedy of writ of Coram nobis. Is creating a conviction to remain. Conviction on a Claim to US citizenship is a kiss of death in immigration laws. Applicants for adjustment of status Or for an immigrant visa who have been convicted of some serious types of crimes may apply for a waiver of inadmissibility, while those who have been convicted on false claims to U.S. citizenship, are ineligible for a waiver of inadmissibility. The enactment of IIRIRA made foreign nationals who made false claims to US citizenship permanently inadmissible. Similar to Class, This case involves conviction through a plea, which did not waive appealing the conviction. And similar to smiley, in this case the charge does not state an offense. Moreover, In this case, like in Class neither expressly nor implicitly, constitutional claims by pleading guilty were, Waived. 1-Applying abuse of discretion review standard, 3 panel judges of 11th circuit refused to review the denial of motion to dismiss the charge for not stating an 14 offense de novo, this decision, conflicts with decisions of other federal courts, including 3,1th- circuit itself, as well as US Supreme Court. see Castillo v. Allegro Resort Mktg., 603 F. App’x. 913, 915 (llth Cir. 2015). (llth Circuit Court ofAppeals reviews a district court’s ruling on a 12(b)(6) motion to dismiss for failure to state a claim de novo). Also See Morgan, 346 U.S. at 509 n. 15 ’’jurisdictional error” is bv its nature, of a “fundamental character” 2* 11th circuit decided not to review important federal questions brought up in coram nobis, in doing so, stopped the opportunity to show that federal conviction was invalid, which is in conflict with rulings of the US Supreme Court. See United States v. Morgan, 346 U.S. 502 (1954) respondent is entitled to an opportunity to show that his federal conviction was invalid. Pp. 346 U. S. 503-513. 3-11th circuit decided to not recognize Constitutional rights and due process violations as any violation this is so important that the Supreme Court should Consider even absent of a conflict.. This is also in Conflict with findings of other circuit courts as well as, this Court See Morgan, held: (the writ of Coram nobis may be issued to correct a constitutional violation, id. at 512-513). Some examples are- A-Prosecutorial Corruption., among many, prosecutor advised court that conviction will not affect loss of immigration status, and asked the court to not allow 15 withdrawal of plea, and in sentencing asked the court to discard all times served without credit and sentence to probation under a different statute. And in 1st revocation of probation, testified that she was tampering with defense counsels. See McDonnell v. U.S. 136 S. Ct.2355 at 2368. B-Ineffective assistance of Counsel,” when a party is prejudice based on counsel's disability to negotiate an alternative plea. Satisfies the requirements of coram nobis relief, See Lafler v. Cooper, 132 S. Ct. 1376 (2012), Also see, Kovacs v. U.S., 744 F.3d 44 (2d Cir. Mar. 3, 2014) (Counsel could have negotiated a plea that did not affect immigration status). C-Habeas corpus claim (denied without hearing) fell within an exception to the procedural default rule see, Waleyv. Johnston, 316_U.S._101. ( making it reviewable on Coram nobis). D-in U.S. v. Meacham. 626 F.2d 503 (5th Cir. 1980), establishes that a district court is without jurisdiction to accent a guilty plea to a “non-offense”. Indeed, jurisdictional error is by its nature of such a “fundamental character” as to render proceedings “irregular and invalid.” Morgan. 346 U.S. at 509 n.15 Also See fimlelv v.U.S. 181 F2nd 505. 4-Hth circuit has failed to recognize that severe consequences of conviction, such as immigration could be a sound reason to file for relief in writ of Coram obis.See Padilla v. Kentucky, 559 U.S. 356 (2010) Risk of deportation as a consequence of conviction on a plea, combined with ineffective assistance of counsel. 16 Also see Truiillo 310 p.3rd 594 ( 2013), convicted of a felony in 1996 . in 2010 he could not become a U.S. citizen that, Trigerred coram nobis. “14 years later”. 5-11th circuit "so far has departed from the accepted and usual course of judicial proceedings, adopting departure by lower court. All in contrast with other circuit courts as well as United state Supreme Court. See, U. S. v. Rhines, 640 F.3d 69, 71 (3d Cir. 2011) We have jurisdiction pursuant to 28 U.S.C. § 1291, and exercise de novo review over legal issues arising from the denial of coram nobis relief. See, Raldayaque, 338 F.3d 145 at 151 (2nd. 2003). We ruled that, where the district court denies equitable tolling as a matter of law, the denial should be reviewed de novo.Id See; 9* Circuit;U.S. v. KWAN No. 03-50315.(9^ Cir. 2005). We review a denial of the writ of error coram nobis de novo. See Supreme Court case- Koon, 518 U.S. at 100, 116 S.Ct. 2035 ("The abuse-of- discretion standard includes review to determine that the discretion was not guided bv erroneous legal conclusions”). This has caused none of the legal issues, or constitutional or due process violations in this case at any stage of proceedings to be heard, considered or Relief issued on, causing a manifest injustice, a blow to the integrity of the U.S. Justice system, which calls for an exercise of this Court's supervisory power." 17 This conflict, has so far stopped the main purpose of writ of coram nobis See Matter of-Roldan, 221. & N. Dec. 486 (BIA 1999) (enbanc), deportation orders reversed sub nom. Lujan-Armendariz v. INS, 222F. 3d 728 (9th Cir. 2000). Otherwise would remain, inadmissible under § 2 12(a)(2)(A)(0(1) of INA, convicted ofa crime involving moral turpitude. Granting the petition for a writ of Coram nobis, to vacate Conviction, will therefore be effective to “remove the legal basis of conviction for purposes of application of federal [immigration] law.” 11th circuit adopted district court statement that 7 years is too long to file for relief. In Mcfgan , where relief through Coram nobis was filed 12 years later due to being sentenced to a longer term as a second offender because of his prior federal conviction. On Other Fundamental Issues, District Courts Interpretation of Law went even Against that of U.S Supreme Court. In this case considering 28 USC 911 defendant was facing 0-6 month by PSI, and sentencing Guide Lines, Court sentenced to 5 years probation. Followed by! another 60 months or 5 year probation, plus 626 days imprisonment, plus$100 fine plus another 9 months on next revocation, not including several custodies of ICE, Per recommendation of prosecutor, Sentence was imposed under 3561(a)(2). which says^ A defendant who has been found guilty of an offense may be sentenced to a term of probation unless—the offense is an offense for which Probation has been »i expressly precluded. 18 However, 18 USC 911. Statates: “Whoever falsely and willfully represents himself to be a citizen of the United States shall be fined under this title or imprisoned not A* more than three years, or both).Probation is expressly precluded. See: U.S. V. Granderson 511 U.S. 39. (Under Sentencing Guidelines of 0-6 months. District Court sentenced Granderson to five years' probation and a fine. Supreme Court Reversed. Stating : Granderson's maximum sentence was 6 months, and he had already served 11 months). (Identical to this case). As in Smiley, in this case, Because the charge of bom in New York does not amount to offence of 28 USC 911. Conviction should be vacated See, Cleveland v. U.S., 531 U.S. 12- 11th circuit failed to recognise that habeas corpus was denied improperly by district judge, applying his own created new law, and failed to recognise, writ of coram nobis could be filed, after habeas corpus is denied. Contradicting Supreme Court in Morgan! when this court held: a writ of habeas corpus did not supersede the writ of coram nobis:( "Nowhere in the history of Section 2255 do we find any purpose to impinge upon prisoners' rights of collateral attack upon their convictions."). 19 REASONS FOR GRANTING THE PETITION The Court should grant certiorari to address the important questions of law presented herein, which have divided the lower courts. On what is a fundamental error that can make a proceeding irregular or invalid, or what is considered sound reason to file for relief under writ of Coram nobis, and does district court have discretion to dictate a time limit when manifest injustice has or is taking place? Also this court can address the issue of ongoing charges that do not state an offense but convictions are obtained and remain (for all different reasons, such as lack of assistance of counsel, lack of finances to get counsel or not being informed that charge is not an offense). Circuit courts are mainly divided on what standard ofreview to use in reviewing the denial oflast resort remedy writ of Coram nobis, and ones like 11th circuit court by using abuse of discretion standard, eliminate the chance to ever be heard when all hearings in lower court had been denied, which is in conflict with direction of this court in Morgan. Resolving this split is important for all participants in the criminal justice system because the lack of clarity causes significant unpredictability in, prosecutions of charges that are not a crime, convictions obtained in violations of due process, prosecutorial vindictiveness and ineffective counsel combined with other due process violations resulting in unsafe guilty plea negotiations and effects on the subsequent proceedings, where the circuit courts are often confused about what standard of review should be used when importance questions of law such as 20 jurisdiction is involve as well as when constitutional rights and due process are violated., and conviction has irreversible consequences. This issue is also recurrent, and it is the location of the charge that dictates the result not the merits of the case and the manifest injustice is involved, when sole purpose of writ of Coram nobis is to provide remedy and stop manifest injustice.. Attorney with zero knowledge of immigration or unwilling to negotiate any plea on behalf of their client are misdirecting to sign a plea in advance before it is understood with severe immigration consequences. Federal convicts are artificially created, which stops them to have the ability to continue with a normal life. When all are done without assistance of counsel in violation of 6lh amendment rights, combined by vindictive prosecution. Against a defendant that his own health and existence is threatened by prolonged forced custody without bail in violation of 8th amendment. With threat of using fruits of illegal interrogation in violation of 5th amendment or illegal search and seizure in violation of 4th amendment and other activities in violation of 14th amendment and due process of law. This type of prosecution while in prolonged torturous custody without bail, with no assistance of counsel, not knowing what they are defending, when the crime has not taken place, it only hurts and breaks down any defendant, that may accept a plea that is made to sound good, but in reality is not. The resolve also will lower the lack of trust with defense attorneys, judges and even prosecutors, as they have to work in concert in obtaining these convictions by threat 21 of additional charges, by liable and slander, or by prolonged custody, and promise of release if plead, and other unconstitutional tactics. . Petitioner’s case is an excellent vehicle for resolving some of these issues. His constitutional rights and due process claims were raised at both the district court and circuit court. Consequences of conviction such as; immigration loss of status, and deportation were brought up Pro Se. And court was clearly reminded that the charged indictment does not state an offense. In district level there were no response by the government in response to filling of Coram nobis. In circuit level the Government in its brief concedes that the charge does not state an offense. Accordingly, this case presents the Court with the opportunity to address cases like Class, smiley, and Morgan and apply to Petitioner’s guilty plea conviction, where he did not expressly waive his right to appeal his convictions, while all defense and appellate attorneys refused to be effective. And case so far has never been heard in in any court, in contrast with Morgan that stated defendant should be given a chance to prove the federal conviction was wrongly obtained. There should be some point in the process that petitioner can be heard as this court mentioned in Morgan. Also Falls in Where Jurisdiction Is in Question see, U. S. v. Mayer, 235 U.S. 55,69, When a Court without Jurisdiction Convicts and Sentences a defendant, the Conviction and Sentence Are Void From their Inception and Remain Void long After a defendant has Fully Suffered Their Direct Force. Morgan, 346 U.S. at 509 22 THE CIRCUIT COURTS ARE DIVIDED ON THE QUESTIONS PRESENTED. The decision below stated, requesting relief through writ of Coram nobis within 7 years is too late , it should have been asked earlier through other avenues, and concluded consequences of immigration is not a sound reason to file for relief and constitutional and due process violations, or conviction on a charge that does not state an offense, do not satisfy definition of fundamental errorunder writ of Coram nobis, and jurisdictional issue . And entering a plea precluded the constitutional challenge to validity of conviction obtained. The 11th Circuits ruling was directly contrary to U.S Supreme court in Morgan, where 12 years was not too late. Contrary to 9th circuit decision in smiley, where it explained that statement of born in New York does not amount to claim to US Citizenship. And in contrast to 9th circuit that immigration consequence of conviction is sound reason to file under coram nobis. See U.S. V. Kwan 407 F.3d 1005 where kwan faced deportation as result of conviction.Court held: (because we find that Kwan's counsel was constitutionally ineffective in affirmatively misleading him as to the immigration consequences of his conviction, and that Kwan has satisfied all of the requirements for coram nobis relief, we reverse). 23 This court visited the question of constitutional challenge to guilty plea, when appealing the conviction was not waived, in Class and held; conviction on a plea unconstitutionally Obtained does not stand. THIS CASE IS WORTHY OF THIS COURT’S REVIEW. A. This Issue Is Recurring And Important. Resolving this issue is important because the vast Majority of federal criminal cases are resolved via Guilty plea—yet See Lindsey Devers, B.O.J. Plea and charge bargaining, . because of the lack of clarity in thisArea, the prosecutor, defendant, and courts lack complete information about what claims will survive The plea. A. 1. Guilty pleas As cleared in class, the law is unclear about the “likely consequences” of a plea. Brady v. United States, 397 U.S. 742, 748 (1970). In the plea colloquy, the district court must adequately inform the defendant of the rights he is waiving. e.g., Fed. R. Grim P. 11. That is difficult where the law is unclear as to what effect the plea itself will have on the defendant’s right to raise certain claims on appeal. 2. Rule 11(a)(2) provides a limited mechanism for defendants to preserve certain claims for appeal. See Fed. R. Grim P. 11(a)(2). Thus, Rule 11(a)(2) was designed solely to provide a means for preserving claims that challenge factual guilt, which do not Inherently survive under Class. 24 Second, Rule 11(a)(2) requires the prosecutor’spermission for the defendant to preserve a claim. See Fed. R. Crim. P. 11(a)(2). But a defendant should not have to rely on “the mercy of noblesse obligd’ just to invoke his pre-existing constitutional rights, See United States v. Stevens, 559 U.S. 460, 480 (2010). For these reasons, a decision by this Court on the question presented would greatly improve the predictability and fairness of guilty plea negotiations and proceedings. B. This Case Is An Excellent Vehicle. This case provides an excellent vehicle to resolve split in the circuits. First, Petitioner has raised challenges to his statute of conviction. His 4th, 5th, 6th, 8th, and 14th, Amendment and due process challenges were Extensively brought up pro se, at the district court prior to the plea, And then were raised again at the circuit court III. THE 11* CIRCUITS DECISION IS WRONG. The court should grant review for the additional reason that 11th circuit decision below in contrary to this courts’ precedent. The 11th circuit concluded that a guilty plea waives all pre plea claims, of double jeopardy and prosecutorial vindictiveness, even when plea is staged by promise of false outcome, and charge does not state an offense. See halberd v, Michigan 545 US 605, 621*22 (2005) (holding, one who pleads guilty 25 May still raise on appeal constitutional defects that are irrelevant to his factual guilt, double jeopardy claims requiring no further factual record, and JURIDTICTIONAL defects. (Emphasis added) Contrary to other circuit courts, 11th circuit refused to review questions of law De Novo. Since both District court and Circuit court have refused to provide an opportunity to show that federal conviction was invalid, Calls for supervisory power of this Court. This case directly presents a recurring issue on which circuit courts are divided which is of significant importance to the orderly and predictable operation of the federal criminal justice system. The court should Grant the petition. CONCLUSION The petition for writ of certiorari should be granted. Respectfully Submitted, N.GheHckkkani NASSER GHELICHKHANI* 310 N. OLIVE AYE WEST PALM BEACH, FL. 33401 * Counsel of record, Pro Se. 26 Certificate of Compliance I Nasser Ghelichkhani certify that this filling, is typed in size 12 century, double spaced and is under 9000 words. Certificate of Service I Nasser Ghelichkhani certify under rule 29.4 that a true copy is being mailed to Noel Francisco Solicitor General United States Department of Justice Room 5616- 950 Pennsylvania Ave. NW Washington, DC 20530-0001. At same time, with this filling. v / U 'K N. GHELICHKHANI, PRO SE Date: April, 23A 2019* * Re-file Date: 06/14/2019